Opinion
29014.
DECIDED DECEMBER 4, 1941. REHEARING DENIED DECEMBER 19, 1941.
Damages; from Macon city court — Judge Baldwin. February 20, 1941. (Application to Supreme Court for certiorari.)
Harris, Harris, Russell Weaver, for plaintiff in error.
T. A. Jacobs, J. J. Gautier, contra.
Under the facts of this case legal service was perfected on the defendant railroad corporation which did business in this State by serving its soliciting freight agent, who had an office in the county in which the present suit was filed and service was perfected, although the defendant did no business in this county other than that of the soliciting of freight.
DECIDED DECEMBER 4, 1941. REHEARING DENIED DECEMBER 19, 1941.
D. F. Meredith, as next friend and grandfather of Bettie Jo Reid, an infant of three years, brought suit against the Louisville Nashville Railroad Company in the city court of Macon, Bibb County, Georgia, to recover damages on account of certain personal injuries alleged to have been sustained by the child as the result of the negligence of the defendant. It was alleged that the defendant is a railroad corporation chartered and organized under the laws of Kentucky and doing business in the State of Georgia; that it has an agent, office, and place of business in Bibb County, Georgia, and is subject to the jurisdiction of the city court of Macon; that the defendant is doing business in Bibb County and is operating therein, together with the Atlantic Coast Line Railroad Company, as joint lessees, the Georgia Railroad; that this infant was a passenger of the defendant at the time she was injured; that on March 2, 1940, she was traveling with her grandmother, who was also a passenger of the defendant and who had purchased at Pensacola, Florida, a ticket from the defendant to Macon, Georgia; that the infant and her grandmother had traveled on the passenger train of the defendant to Flomaton, Alabama, where they, in order to continue their journey to Macon, Georgia, had to change from the Pensacola train to another train operated by the defendant going from Flomaton to Montgomery, Alabama; that this change of trains had to be made around midnight and at a time when it was raining, and the steps of the coach on the train in which they had been riding were wet and slippery; and that as they were making this change of trains the infant was injured by reason of the negligence of the defendant.
The sheriff of Bibb County, through his deputy, served this suit upon the commercial agent of the defendant in that county as an officer of the defendant in charge of its business in that county. The plaintiff filed an amendment to the petition and alleged that the defendant operates under its own name a railroad line in Georgia, running from Marietta in Cobb County to Blue Ridge in Fannin County, and from there into Tennessee and North Carolina; that the infant, Bettie Jo Reid, was abandoned by her parents, James Reid and his wife, of Jacksonville, Florida, and turned over to B. F. Meredith and his wife, her grandparents, when she was six months old; and that the parents of Bettie Jo Reid have not supported the child during this time, and she has been in the exclusive custody and control of B. F. Meredith and his wife and has lived in the City of Macon with them for three years before the filing of this suit; that Bettie Jo Reid is a resident of Bibb County, Georgia. To the return of service the defendant filed a traverse, making the sheriff and the deputy parties, and alleging that the person served by the deputy sheriff was engaged in soliciting business only, and maintained no office of the defendant, and that the defendant is not doing business in Bibb County, Georgia, within the purview of the laws of Georgia so as to entitle it to be sued in that county.
The defendant, without waiving its traverse, but subject thereto, and appearing solely for the purpose of objecting to the jurisdiction, filed its plea in which it alleged that the city court of Macon had no jurisdiction of the case; that the case should be dismissed because it appears that it is based on a transitory cause of action between two non-residents, arising out of business in no way related to the business that the defendant was doing in this State; that it appears that the plaintiff was a non-resident of Georgia at the time of the filing of the suit, and was a resident of Jacksonville, Florida; that it appears that the defendant is a nonresident corporation organized under the laws of Kentucky; that the alleged cause of action arose in Flomaton, Alabama, and did not arise out of any of the business transacted in the State of Georgia, and bears no relation to business transacted in Georgia; that the city court of Macon has no jurisdiction of the defendant, but that if any court has jurisdiction, the circuit court embracing Flomaton, Alabama, or some court of concurrent jurisdiction, has jurisdiction of the cause of action; and that this defendant has not voluntarily consented to be sued in this case, and the action grows out of no business transacted by the defendant in this State, and for these reasons the city court of Macon is without jurisdiction and the action should be dismissed.
The defendant demurred to the petition on the ground that no cause of action is alleged and because the city court of Macon has no jurisdiction after it appears that the plaintiff is a non-resident and this defendant is a corporation of the State of Kentucky, and it appears that this is a transitory cause of action between two non-residents arising out of business in no way related to business that this defendant was doing in Georgia; and that therefore it appears upon the face of the petition that the court is without jurisdiction as to the defendant and is therefore without jurisdiction to hear and determine this action. The defendant also demurred specially to various paragraphs of the petition.
On February 18, 1941, the issue made by the traverse of the defendant to the return of service came on to be heard upon the law and facts as stipulated between the plaintiff and the defendant, before the court without the intervention of a jury, and the court found against the defendant and dismissed the traverse. On the same day the defendant moved orally to dismiss the petition on the ground that it appeared that the court did not have jurisdiction, which motion was denied. On February 20, 1941, on motion of the plaintiff, the plea to the jurisdiction was stricken as being insufficient in law. On February 20, 1941, the demurrers came on for a hearing and the court passed this order: "The plaintiff having amended her petition, and the defendant renewing this demurrer and continuing to urge it against the petition as amended, it is ordered and adjudged that the same be and is hereby overruled on each of the grounds of general and special demurrer." The defendant excepted to the judgment dismissing the traverse, to the order overruling its motion to dismiss the case and ordering the case to proceed to trial, to the order sustaining the plaintiff's motion to strike the plea to the jurisdiction and striking the plea, and to the order overruling the demurrers, general and special, to the petition.
The Louisville Nashville Railroad Company is a foreign corporation operating lines of railroads in Georgia. It has an office and place of business in Bibb County, but it does not have any railroad tracks in that county. It does have an agent in Bibb County, and this agent was served with the petition and the process. The plaintiff is a little girl, three years of age, who it is alleged has been abandoned by her parents and is in the custody and care of her grandparents who are residents of Bibb County. This suit is instituted by the grandfather of the plaintiff as next friend.
It is alleged that the plaintiff was injured through the negligence of the defendant in the operation of one of its trains in Alabama, when the plaintiff and her grandmother undertook to change trains at Flomaton, Alabama, by disembarking from one of the defendant's trains for the purpose of boarding another of its trains so as to continue their journey to Macon, Georgia. It is alleged that the plaintiff was traveling with her grandmother who had purchased from the defendant a ticket from Pensacola, Florida to Macon, Georgia. This journey on the defendant's trains and over its lines necessitated the plaintiff and her grandmother changing trains at Flomaton.
It is contended by the defendant that the city court of Macon in Bibb County had no jurisdiction of this cause of action. It is contended that because it did not own any line of railroad in Bibb County, and because the service of the petition was upon an agent of the defendant in Bibb County who maintained an office there but who was only a soliciting freight agent, the city court of Macon did not have jurisdiction to entertain the suit brought on account of the alleged negligence of the defendant in the operation of one of its trains in Alabama, which negligence resulted in personal injury to the plaintiff. The judge decided this contention adversely to the defendant, and denied its plea, motion, and demurrer to this effect.
The general jurisdiction of State courts extends to transitory causes of action arising in another State, even though the plaintiff may not have been a resident of the State where the cause of action arose and the defendant may be a foreign corporation so long as it is confined to the field from which the State itself is not excluded under the provisions of the United States constitution. An action is transitory within the meaning of this rule when the transaction on which it is based might have taken place anywhere. Generally speaking, injuries to person or property of another arising ex contractu or ex delicto are of a transitory nature, and an action may be brought wherever the defendant may be found and served. Ormsby v. Chase, 290 U.S. 387 ( 54 Sup. Ct. 211, 78 L. ed. 378, 92 A.L.R. 1499). It is generally held that an action for a tort is transitory, and ordinarily can be brought in a court of any State that has jurisdiction over the parties. Thus, an action for an injury to the person is transitory, and may be maintained in the courts of a State other than that where the injury occurred. This is the rule adopted in this State. Reeves v. Southern Ry. Co., 121 Ga. 561 ( 49 S.E. 674, 70 L.R.A. 513, 2 Ann. Cas. 207). This was the rule at common law. "At common law personal actions, whether arising ex contractu or ex delicto, are transitory in their character and may be brought in another State or country than that in which the cause of action arose." 1 Am. Jur. 412; Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 ( 24 Sup. Ct. 92, 48 L. ed. 225). On the question of whether or not a State court has the power, in the proper case, to decline to entertain an action for a non-statutory tort occurring in another State or country, even where both parties are non-residents, see 32 A.L.R. 6, 33.
It seems that the courts of this State are bound to take jurisdiction of such an action if the defendant can be found and served in the county where the suit is brought. "A foreign corporation doing business in this State and having agents located therein for this purpose may be sued and served in the same manner as domestic corporations, upon any transitory cause of action whether originating in this State or otherwise; and it is immaterial whether the plaintiff be a non-resident or a resident of this State, provided the enforcement of the cause of action would not be contrary to the laws and policy of this State." Reeves v. Southern Ry. Co., supra. In that case the court said: "The true test of jurisdiction is not residence or non-residence of the plaintiff, or the place where the cause of action originated, but whether the defendant can be found and served in the jurisdiction where the cause of action is asserted. A corporation can be found in any jurisdiction where it transacts business through agents located in that jurisdiction; and suits may be maintained against it in that jurisdiction, if the laws of the same provide a method for perfecting service on it by serving its agents." "Service of . . process necessary to the commencement of any suit against any corporation in any court, except as hereinafter provided, may be perfected by serving any officer or agent of such corporation, or by leaving the same at the place of transacting the usual and ordinary public business of such corporation, if any such place of business then shall be within the jurisdiction of the court in which said suit may be commenced." Code, § 22-1101. It has been held that a foreign corporation having an officer or agent in this State may be served by serving its officer or agent. City Fire Insurance Co. v. Carrugi, 41 Ga. 660; Equity Life Asso. v. Gammon, 119 Ga. 271 ( 46 S.E. 100). It appears that the defendant, while it did not maintain any lines of railroad in Bibb County, did business in the State of Georgia and maintained lines of railroad on which it operated passenger trains in the State of Georgia. It had an office and an agent in Bibb County for the purpose of transacting part of its railroad business in this State. "A foreign corporation doing business in this State is subject to the jurisdiction of the courts of this State if it can be served with process; and, as, by our law, any corporation may be served with the process of a court having jurisdiction of the suit, by serving `any officer or agent of such corporation' so any foreign corporation having an officer or agent here may be served by serving its officer or agent." City Fire Insurance Co. v. Carrugi, supra. In Williams v. East Tenn., Va. Ga. Ry. Co., 90 Ga. 519, 520 ( 16 S.E. 303), the court stated as follows: "Our Code declares that `a citizen of another State passing through this State may be sued in any county thereof in which he may happen to be at the time when sued.' (§ 3416.) A corporation is for some purposes a citizen, and if present is no less subject to the jurisdiction than any other citizen of another State. Besides, a corporation though a citizen of but one State, may be a resident also of other States. This court, in City Fire Insurance Co. v. Carrugi, 41 Ga. 660, held that `a foreign corporation doing business in this State is subject to the jurisdiction of the courts of this State, if it can be served with process'; and our laws provide for the service of process upon foreign as well as domestic corporations. (Code, § 3369 et seq.) The test of jurisdiction in personam is whether the corporation is so far present as that service can be effected, and it is to this extent present where its officers or agents are present and have an office and are engaged in the conduct of its business. When thus engaged in the exercise of its franchises in a State other than that of its creation, it can not be said that the corporate entity is confined to its principal office in the latter. In fact, for the purpose of being sued, it may be treated as a resident of each State in which it does business under State laws."
In Saffold v. Scottish American Mortgage Co., 98 Ga. 785, 788 ( 27 S.E. 208), the Supreme Court, citing the Carrugi and the Williams cases, held that a foreign corporation doing business in this State may, for purposes of suit, be treated as a resident of this State and of any county in this State in which it has an agent upon whom service can be perfected. Therefore it appears that the defendant was doing business in the State of Georgia, and that it had an agent and maintained an office in the County of Bibb upon whom service of process could be effected.
Nothing was held in Vicksburg, Shreveport Pacific Ry. v. DeBow, 148 Ga. 738 ( 98 S.E. 381), to the contrary of what we hold here. In that case the foreign railroad corporation neither owned, leased, nor operated any line of railroad within this State, and the court properly held that such corporation was not doing business within the State, and that therefore service upon an agent who merely solicited freight did not give, where the county where such agent was found and served, jurisdiction of a transitory cause of action that did not grow out of and had no connection with the incidental business of the corporation conducted by such freight agent of soliciting freight. To the same effect see DeBow v. Vicksburg c. Ry., 23 Ga. App. 715 ( 99 S.E. 317). In West v. Cincinnati c. Railway Co., 170 Fed. 349 the court held that a foreign corporation having no tracks in Georgia, and doing no business here except by a commercial agent who solicited business, was not doing business in Georgia, and that service on such agent would not confer jurisdiction over the corporation. It is essential to the legal rendition of a personal judgment against a foreign corporation, otherwise than by its voluntary appearance, that the corporation be doing business within Georgia and that such business be part of the business for which the corporation was organized and not a mere incident to that business. Southeastern Distributing Co. v. Nordyke Marmon Co., 159 Ga. 150 ( 125 S.E. 171). To the same effect see Dowe v. Debus Mfg. Co., 49 Ga. App. 412 ( 175 S.E. 676).
The defendant was doing business within this State, and while it did not maintain any lines of railroad in Bibb County it nevertheless did a part of its business there. It had an office and agent in Bibb County. While the agent in Bibb County upon whom the petition and the process were served did not have authority relatively to the defendant's passenger business or the operation of the defendant's passenger trains, he did have authority relatively to the solicitation of freight business for the defendant and to the direction of freight over the defendant's lines. The defendant is a common carrier of freight and passengers, and as such owns, leases, and operates lines of railroad within the State of Georgia, as well as other States, including Florida and Alabama. Under the Code, § 22-1101, and under the authorities above referred to service could be perfected on the defendant by serving the petition and the process upon any officer or agent of the corporation. Service of the petition and the process upon the commercial freight agent of the defendant in Bibb County could be legally perfected, so as to give jurisdiction to the courts of this State, by service upon the commercial agent in Bibb County who maintains an office there furnished him by the defendant.
This decision is not contrary to that in Louisiana c. Co. v. Mente, 173 Ga. 1 ( 159 S.E. 497), where it was held that service on the agent of a non-resident corporation was not sufficient to give jurisdiction where the cause of action bears no relation to the business transacted in this State. The plaintiff was injured by reason of the alleged negligence of the defendant in the operation of its passenger train on which she was a passenger in the State of Alabama. The defendant owns and operates lines of railroad as a carrier of passengers in the State of Georgia. The plaintiff was a through passenger on the defendant's railroad from Pensacola, Florida, to Macon, Georgia, and in the course of her journey was injured while changing from one train of the defendant to another train of the defendant in Alabama.
The petition set out a cause of action on account of the alleged negligence of the defendant's employees in the operation of its train on which the plaintiff was a passenger. Under the allegations of the petition it was a question of fact for the jury whether, under the circumstances, taking into consideration the plaintiff's age, the fact that she was with her aged grandmother, who had other small children to look after, the height of the steps of the car from which the plaintiff had to alight in order to change trains, the time of the night when this change of trains was to be made, and the condition of the steps and also of the weather, the defendant was required, in the exercise of proper care and in the proper performance of its duties toward the plaintiff, to render assistance to the plaintiff and her grandmother in disembarking from one of its trains for the purpose of boarding another, and whether it was negligent in failing to render such assistance as the result of which the plaintiff fell and was injured. See Metts v. L. N. Railroad Co., 52 Ga. App. 115 ( 182 S.E. 531); Southern Railway v. Crabb, 10 Ga. App. 559 ( 73 S.E. 859); Valdosta Street Railroad v. Fenn, 11 Ga. App. 586 ( 75 S.E. 984); Southern Railway v. Laxson, 217 Ala. 1 ( 114 So. 290, 55 A.L.R. 385).
It follows that the court did not err in denying the defendant's plea and motion, and in overruling the general demurrer to the petition as amended.
Judgment affirmed. Felton, J., concurs. Sutton, J., dissents.
I do not think the facts show that the business of the defendant in this case involved its business in Georgia because in selling a ticket over a connecting line the initial carrier acts as agent for the connecting line and not as principal. I think the State court should take jurisdiction of this case, for the reason that the plaintiff is a resident of Georgia, and it would be against the law and the public policy of this State to require a citizen to sue a foreign corporation in another State when he can get legal service on the corporation in this State. Code, §§ 3-206, 15-202. See 23 Am. Jur. 496, note 6; Grovey v. Washington National Insurance Co., 196 Ark. 697 ( 119 S.W.2d 503); Every v. Mexican R. Co., 81 Fed. 294 (38 L.R.A. 387); Gregonis v. Philadelphia c. Co., 235 N.Y. 152 ( 139 N.E. 223, 32 A.L.R. 1); Hunter v. Niagara Ins. Co., 73 Ohio, 110 (76 N.E.. 563, 3 L.R.A. (N.S.) 1187, 112 Am. St. R. 699, 4 Ann. Cas. 146); Lipe v. Carolina R. Co., 123 S.C. 515 ( 116 S.E. 101, 30 A.L.R. 248); Missouri Pacific R. Co. v. Cullers, 81 Tex. 382 ( 17 S.W. 19, 13 L.R.A. 542); notes in 96 A.L.R. 368; 113 A.L.R. 134. Under the stipulated facts the agent served had authority to solicit business in Georgia, to begin in Georgia. That fact distinguishes this case from Vicksburg c. Ry. v. DeBow, 148 Ga. 738, supra.
The three-year-old child who is alleged to have been injured was traveling with her grandmother who had purchased a ticket from Pensacola, Florida, to Macon, Bibb County, Georgia. The transportation began on the line of the defendant at Pensacola, Florida, and its tracks ran from that point to Montgomery, Alabama. The defendant did not maintain any line of transportation from Montgomery to the passenger's destination in Macon, Bibb County, Georgia, nor did the defendant have any railroad or tracks in Macon, Bibb County, Georgia, but it did operate a railroad line from Marietta in Cobb County, Georgia, to Blue Ridge in Fannin County, and from there into Tennessee and North Carolina. The alleged injury occurred in Flomaton, Alabama. It is not shown that the cause of action, which arose in Alabama, arose out of or was connected with any of the business transacted by the defendant in Georgia, and, accordingly, the courts of this State have no jurisdiction of the action. Louisiana State Rice Milling Co. v. Mente, 173 Ga. 1 (supra); McCorkle v. Pullman Company, 60 Ga. App. 879 ( 5 S.E.2d, 382). Furthermore, under the facts of this case the defendant could not be found in Bibb County, Georgia, for the purpose of obtaining service, inasmuch as the office and agent maintained there by the defendant served only the limited and incidental purpose of solicitation in freight matters. "`A railroad company which has no tracks within the district is not doing business therein in the sense that liability for service is incurred because it hires an office and employs an agent for the merely incidental business of solicitation of freight and passenger traffic.'" Vicksburg c. Ry. v. DeBow, 148 Ga. 738 744 (supra). I think that the court erred in dismissing the defendant's traverse to the return of service, and in dismissing the plea to the jurisdiction, and therefore dissent from the majority opinion of this court. I do not think that the authorities cited by my brethren are authority for the maintenance of a suit under the facts as disclosed by the record in the present case. See also Simon v. Southern Railway Co., 236 U.S. 115, 130 ( 35 Sup. Ct. 255, 59 L. ed. 492); Old Wayne Mutual Life Asso. v. McDonough, 204 U.S. 8, 22 ( 27 Sup. Ct. 236, 51 L. ed. 345).